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2012 DIGILAW 2938 (MAD)

Malliga v. Nagammal

2012-07-10

T.RAJA

body2012
Judgment :- 1. Second Appeal No.90/2006 is filed against the judgment and decree made in A.S.No.54 of 2004 on the file of the Subordinate Judge, Ranipet dated 12.9.2005 confirming the judgment and decree made in O.S.No.221/1995 renumbered after remand as O.S.No.266/1996 on the file of the District Munsif-cum-Judicial Magistrate at Arcot dated 28.11.2003 insofar as declaring the title and right of the second defendant to the extent of half share in the suit property even after the life time of the first defendant. “Second Appeal No.522/2006 is filed against the judgment and decree dated 12.9.2005 passed in A.S.No.25 of 2004 on the file of the Subordinate Judge, Ranipet modifying the judgment and decree of the trial court dated 28.11.2003 passed in O.S.No.266 of 1996 on the file of the District Munsif-cum-Judicial Magistrate, Arcot.” 2. The suit property originally belonged to one Subbarayalu Maistry, the husband of the first plaintiff-Pattu rosammal and the first defendant -Nagammal. The said Subbarayalu Maistry during his life time had executed a registered settlement dated 7.12.1944-Ex.A.2 in favour of his second wife/1st defendant-Nagammal vesting life estate without any power of alienation. It was further averred in the plaint that due to strained relationship with the Subbarayalu Maistry and some misunderstanding crept up in the family when the abovementioned settlement deed 7.12.1944 was executed in favour of the second wife, by compromise the first defendant-Nagammal has executed another settlement deed 9.9.1945-Ex.A.3 settling half share in Ex.A2 in favour of the first wife-first plaintiff Patturosammal. After some time the first defendant sold by Ex.B4 sale deed dated 20.9.1989 the entire suit property as covered in Ex.A2. Subsequently, the purchaser from the first defendant started interfering with the half portion in the suit property as she filed the suit in O.S.No.169/1990 on the file of the District Munsif Court, Ranipet seeking permanent injunction and the said suit was dismissed on the ground that no injunction could be granted against a co-owner. In the said suit the trial Court has come to the conclusion that the plaintiff/appellant herein and D1 are co-owners of the suit property. The plaintiffs 1 and 2 filed the suit for partition of their half share and consequent possession by filing O.S.No.221/1995 on the file of the Sub-Court, Ranipet. 3. In the said suit the trial Court has come to the conclusion that the plaintiff/appellant herein and D1 are co-owners of the suit property. The plaintiffs 1 and 2 filed the suit for partition of their half share and consequent possession by filing O.S.No.221/1995 on the file of the Sub-Court, Ranipet. 3. The prayer in the suit was opposed by the defendants taking a plea that this alleged settlement deed dated 9.9.1945 was executed by the first defendant in favour of the first plaintiff. It was only sham and nominal as it was appended by Subbarayalu Maistry. Further, it was not even acted upon. As the first defendant is in possession and enjoyment of the suit property as absolute owner, sold away the suit property to the second defendant by registered sale deed dated 20.9.89. The second defendant being bonafide purchaser for a valid consideration of Rs.18,000/-she has been subsequently put in possession of the suit property as absolute owner. Therefore, the first plaintiff who is not in possession of the suit property has no title, right and interest over the suit property. The prayer for partition and separate possession and permanent injunction are unsustainable in law. It was also further pleaded that the present suit filed for partition and separate possession with other prayer is directly hit by section 11 of C.P.C as they had already filed a suit for permanent injunction, that was dismissed on 20.1.94. 4. Under these circumstances, the trial Court took up the matter. By considering the relevant evidence the trial court came to the conclusion that since the husband of the first plaintiff and the first defendant had executed a settlement dated Ex.A2 dated 7.2.1944 giving the suit property in favour of Nagammal with life interest and after her life time the suit property should go to her children The said Nagammal first defendant during the life time of her husband on executing another settlement dated 9.9.1945 in favour of the first plaintiff-Patturosammal giving half share of the land covered in settlement deed -Ex.A.2 and executed Ex.A.1 dated 9.9.1945. The husband of both the first plaintiff and the first defendant-Subbarayalu Maistry also appended the signature of the first defendant. The husband of both the first plaintiff and the first defendant-Subbarayalu Maistry also appended the signature of the first defendant. This goes without saying that Subbarayalu Maistry, the husband of the first plaintiff and the first defendant wanted to give half of the family property to both the wives, the first wife and the second wife. On that basis, the trial court decreed the suit holding that the first plaintiff is entitled to have partition of half share, granted further relief of separate possession of half share and the remaining half share sold to the second defendant was held valid and finally, granted permanent injunction against the second defendant with reference to the half share under Ex.A.3. 5. Aggrieved by the same appeal was filed by the plaintiff in A.S.No.27/2000. Subsequently, on appeal, the matter was remanded and transferred to District Munsif Court, Arcot and the same was renumbered as O.S.No.266/1996 and finally, the trial court decreed the suit holding that the first plaintiff-Patturosammal was entitled for half share with consequential direction to separate possession of half share. On that basis, permanent injunction was granted. However, the remaining half share sold to the second defendant was held invalid. 6. Aggrieved by the same, both the plaintiff and the 2nd defendant filed appeals against the trial court judgment, namely A.S.No.54/2004 and A.S.No.25/2004 respectively. But the learned first appellate court dismissed the appeal filed by the plaintiff-A.S.No.54/2004 on 12.9.2005 by partly allowing A.S.No.25/2004. As against the disallowed portion of the judgment and decree S.A.No.522/2006 has been filed by the second defendant, namely purchaser of the suit property. S.A.No.90/2006 is filed by plaintiff. 7. This Court while entertaining S.A.No.90/2006 framed the following substantial question of law: "Whether the judgment and decree under appeal is vitiated for want of considering the case in the light of the provisions contained in the Hindu Succession Act especially in terms of Section 15(b) of the Hindu Succession Act?" While entertaining the Second Appeal No.522/2006 this Court framed the following substantial questions of law for consideration. "1.Whether the findings of the courts below that the sale deed in favour of the appellant executed by the first defendant and marked as Ex.B4 is not valid, is not vitiated by a misleading of Section 14 of the Hindu Succession Act? 2. "1.Whether the findings of the courts below that the sale deed in favour of the appellant executed by the first defendant and marked as Ex.B4 is not valid, is not vitiated by a misleading of Section 14 of the Hindu Succession Act? 2. Having noted that the first defendant got the property under a settlement deed from her husband in 1944 and having further found that the first defendant continued to be in possession of the property on the coming into force of Hindu Succession Act whether the courts below is right in coming to the conclusion that the first defendant has no right to sell the property and whether such finding is not opposed to the well settled legal principle rendered by the Apex Court and the High Court and the legal principle enunciated under Section 14 of the Hindu Succession Act? 8. (i)It was contended by the learned counsel appearing for the plaintiff/appellant that Ex.A2 settlement deed made in favour of Nagammal by Subburayalu Maistry on 7.2.1944, created only limited right of life estate is attracted by section 14(2) of the Hindu Succession Act 1956 inasmuch as remainder vested right was given to herself. Whileso, the second plaintiff Malliga being the daughter of Subbarayalu Maistry, through first wife she is also legal heir of Nagammal/D1 as per section 15(b) of the Hindu Succession Act, the second plaintiff is entitled to get the entire property after the lifetime of Nagammal. (ii) Even if the defendant for the sake of arguments admits the applicability of Section 14 of the Hindu Succession Act, as Section 15(b) alone will apply. If you have a conjoint reading of Sections 14 and 15(b), that gives full right to the second plaintiff, daughter of Subbarayalu Maistry. Therefore, the sale deed-Ex.B4 executed by Nagammal-the first defendant in favour of the second defendant is null and void as the vendor has no transferrable right since the second plaintiff's father Subbarayalu Maistry had executed the settlement deed-Ex.A.2 dated 7.2.1944 in favour of Nagammal only with limited interest with the specific condition that after her life, the entire property will go to her children. Since Nagammal had no issue, she cannot alienate the property. Therefore, as a legal consequence, the entire suit property will go to the second plaintiff-Malliga. Since Nagammal had no issue, she cannot alienate the property. Therefore, as a legal consequence, the entire suit property will go to the second plaintiff-Malliga. (iii) The learned counsel further advanced his arguments stating that Section 14(1) on the commencement of this Act has given full ownership right to a female Hindu who is in possession of her property with limited ownership right. Further, in view of section 14(2) if any instrument like gift deed, will or order of a Civil Court prescribes any restricted estate in such property, the same will not get enlarged. On that basis the learned counsel prayed for setting aside the impugned judgment and decree by allowing the Second Appeal No.90/2006. 9. The learned counsel appearing for the respondent would contend that when the first defendant Nagammal, the second wife of Subbarayalu Maistry was given the suit property through the settlement deed Ex.A.2 dated 7.2.1944 in view of section 14(1) of the Hindu Succession it gets automatically enlarged and therefore, the entire property becomes the absolute property of the first defendant. Therefore, the alleged settlement dated 9.9.1945 Ex.A.3 said to have been executed by Nagammal the first plaintiff , in favour of Patturosammal giving half of the suit property is not validly available for the plaintiff to claim half portion of the suit property. It was further contended that the second suit filed by the plaintiff is not maintainable as it is hit by Order II Rule 2 C.P.C. While further contending it was argued that since all the facts now presented before this court were also available when the earlier suit in O.S.No.169/90 was filed after dismissal of the previous suit, the plaintiffs cannot once again file the second suit modifying a different prayer. Therefore, the second suit is barred under Order II Rule 2 C.P.C. 10. Heard the learned counsel for the respective parties 11. It is an admitted fact that Subbarayalu Maistry, husband of the two wives, namely, Patturosammal-first plaintiff and Nagammal, the second wife-first defendant had executed the settlement dated 7.2.1944 giving only a limited life interest in favour of Nagammal by specifically stating therein that after her life, her children alone will entitle to inherit the property. It is an admitted fact that Subbarayalu Maistry, husband of the two wives, namely, Patturosammal-first plaintiff and Nagammal, the second wife-first defendant had executed the settlement dated 7.2.1944 giving only a limited life interest in favour of Nagammal by specifically stating therein that after her life, her children alone will entitle to inherit the property. But, however, during the life time of Subbarayalu Maistry the first defendant Nagammal on her own came forward to execute another settlement dated 9.9.1945 giving half share in favour of the first plaintiff-first wife-Patturosammal. Further in the second settlement deed Ex.A.3, Subbarayalu also has appended his signature agreeing for settling half of the property in favour of the first wife-Patturosammal-first plaintiff and her daughter the second plaintiff-Malliga. Subsequently, after the death of Subbarayalu Maistry when the first defendant sold away the suit property and as a result, the second defendant attempted to interfere with the suit property, the suit in O.S.No.169/1990 was filed by the first plaintiff on the file of the learned District Munsif Court, Ranipet seeking for permanent injunction. The learned trial Court after considering the validity of the settlement dated Ex.A.2 dated 7.2.1944 and Ex.A.3 dated 9.9.1945 came to the conclusion that both the first plaintiff and the first defendant are co-owners of the property. On that basis, the trial court refused to decree the suit. However, a specific finding was given that both are co-owners. That judgment and decree passed in O.S.No.169/90 was accepted by the first defendant-Nagammal. Therefore, this would even today operate against Nagammal to her plea that she is the absolute owner of the suit property. Hence, the argument advanced by the learned counsel for the respondents that Order II Rule 2 of C.P.C. would apply to the present suit is wholly misplaced. However, when the suit property originally owned by Subbarayalu Maistry, was given to Second wife Nagammal with limited life estate, again giving half share by another settlement deed to 2nd wife, the plaintiff herein cannot be found fault with. In view of the fact that in the earlier suit filed by the plaintiff in O.S.No.169/90 a finding has already been given holding that both the first plaintiff and the first defendant are co-owners in respect of the suit property, they are entitled to have half share equally as they are co-owners as per the judgment in O.S.No.169/90 dated 28.1.1994 remains unchallenged. Further, both are first and second wives of late Subbarayalu Maistry. 12. By looking at the relationship among the parties, this Court is not willing to stand on any hyper technicalities by rendering justice to all the parties. The first plaintiff-Patturosammal is the first wife of Subbarayalu Maistry through whom she got the second plaintifff-Malliga. The first defendant-Nagammal is the second wife of Subbarayalu Maistry. The said Subbarayalu Maistry, husband of both the first plaintiff and the first defendant, executed a settlement deed dated 7.2.1944-Ex.A.2, giving the suit property in favour of Nagammal, the first defendant with life interest along with the specific recital after her life time, her children will enjoy the suit property. After some time, the first defendant-Nagammal, during the life time of Subbarayalu Maistry has executed another settlement deed-Ex.A.3 dated 9.9.1945 giving half share in the same suit property in favour of first plaintiff/first wife-Pattu rosammal. As a result, half share apportioned between the first wife and the second wife, they started living in the same place by occupying equal portion of the suit property. When dispute arose, Civil Suit-O.S.No.169/90 was filed by the first plaintiff-Patturosammal against Nagammal and the second defendant, Chandra who is the subsequent purchaser of the suit property from Nagammal for permanent injunction. The trial Court by giving a finding that both Patturosammal-first plaintiff and Nagammal-first defendant are co-owners of the suit property on the basis of Ex.A.3 dated 9.9.1945, refused to grant any injunction. However, the finding, that both the first plaintiff and the first defendant are co-owners, has been accepted by both of them as no one preferred appeal against that judgment. In view of the judgment and decree passed by the learned District Munsif Court at Ranipet in O.S.No.169/1990 finding that both the first plaintiff and the first defendant are co-owners and also further taking judicial note of the fact that both are sisters and being first and second wives of Subbarayalu Maistry, the owner of the suit property, they are entitled to have half share each from the suit property. Further, it is also held that after the death of Nagammal, the second defendant-Chandra is entitled to have half share of Nagammal. Further, it is also held that after the death of Nagammal, the second defendant-Chandra is entitled to have half share of Nagammal. Therefore, in the light of the earlier judgment and decree passed in O.S.No.169/90 dated 28.1.1994 holding both plaintiff No.1 and Defendant No.1 are co-owners of the suit property, the subsequent suit is hit by Order 11 Rule 2 of C.P.C. However, in the subsequent Suit both courts below have held that both wives are entitled to have half share only, therefore this Court is of the view that no purpose will be served by going into other issues. Accordingly, the issues are answered. 13. In view of these findings, the Second Appeal No.90/2006 is dismissed by confirming the judgment and decree passed by both the courts below. In view of the dismissal of S.A.No.90/2006, the Second Appeal No.522/2006 filed by the second defendant also stands dismissed. However, there is no order as to costs. Connected pending M.P.No.1/2012 is dismissed.